Dance v. Ensco Offshore Co.

Fifth Circuit

Dance v. Ensco Offshore Co.

314 F. App'x 654

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 18, 2009

Docket08-30314, 08-30386

StatusUnpublished

This text of 314 F. App'x 654 (Dance v. Ensco Offshore Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dance v. Ensco Offshore Co., 314 F. App'x 654 (5th Cir. 2009).

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Opinion

PER CURIAM: *

Plaintiff Gary Dance appeals the district court’s judgment in favor of Defendant ENSCO Offshore Co., and Defendant cross-appeals the court’s denial of its motion to dismiss. Reviewing the record de novo, and assuming the applicable standard under Fed.R.Civ.P. 50(a) to require a “complete absence of probative facts supporting the nonmovant’s position,” Hughes v. Int’l Diving & Consulting Servs., Inc., 68 F.3d 90, 93 (5th Cir.1995) (per curiam) (Jones Act), we conclude that the testimony by Plaintiffs expert that Defendant’s safety manual could have included more specific guidelines regarding the lifting of heavy objects does not, as a matter of law, suffice to establish Plaintiffs negligence or unseaworthiness claims. The district court therefore correctly granted Defendant’s motion for judgment under Rule 50(a).

We also find that the district court did not abuse its discretion by denying Plaintiffs motion to amend, filed on July 1, 2006. Because Plaintiff’s proposed cumulative-trauma claim did not arise out of acts and occurrences set out in his original pleading, the amendment would not relate back to the filing date of that pleading. See Fed.R.Civ.P. 15(c)(1)(B). Additionally, Plaintiff should have discovered the alleged causal connection between *656 the trauma and his back pain sometime in June 2003, or more than three years before he moved to amend. Hence, the proposed claim was time-barred. See F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir.1994) (denial of leave to amend is proper when the statute of limitations has run); 46 U.S.C. § 30104 (three-year statute of limitations for Jones Act claims, as prescribed under FELA, 45 U.S.C. § 56); § 30106 (limitations period of three years under general maritime law). In light of these conclusions, Defendant’s cross-appeal is denied as moot.

AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Plaintiff Gary Dance appeals the district court’s judgment in favor of Defendant ENSCO Offshore Co., and Defendant cross-appeals the court’s denial of its motion to dismiss. Reviewing the record de novo, and assuming the applicable standard under Fed.R.Civ.P. 50(a) to require a “complete absence of probative facts supporting the nonmovant’s position,” Hughes v. Int’l Diving & Consulting Servs., Inc., 68 F.3d 90, 93 (5th Cir.1995) (per curiam) (Jones Act), we conclude that the testimony by Plaintiffs expert that Defendant’s safety manual could have included more specific guidelines regarding the lifting of heavy objects does not, as a matter of law, suffice to establish Plaintiffs negligence or unseaworthiness claims. The district court therefore correctly granted Defendant’s motion for judgment under Rule 50(a).

We also find that the district court did not abuse its discretion by denying Plaintiffs motion to amend, filed on July 1, 2006. Because Plaintiff’s proposed cumulative-trauma claim did not arise out of acts and occurrences set out in his original pleading, the amendment would not relate back to the filing date of that pleading. See Fed.R.Civ.P. 15(c)(1)(B). Additionally, Plaintiff should have discovered the alleged causal connection between *656 the trauma and his back pain sometime in June 2003, or more than three years before he moved to amend. Hence, the proposed claim was time-barred. See F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir.1994) (denial of leave to amend is proper when the statute of limitations has run); 46 U.S.C. § 30104 (three-year statute of limitations for Jones Act claims, as prescribed under FELA, 45 U.S.C. § 56); § 30106 (limitations period of three years under general maritime law). In light of these conclusions, Defendant’s cross-appeal is denied as moot.

AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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